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Constitutional Bad Faith

71 Pages Posted: 12 Oct 2015 Last revised: 31 Mar 2016

David Pozen

Columbia Law School

Date Written: 2016

Abstract

The concepts of good faith and bad faith play a central role in many areas of private law and international law. Typically associated with honesty, loyalty, and fair dealing, good faith is said to supply the fundamental principle of every legal system, if not the foundation of all law. With limited exceptions, however, good faith and bad faith go unmentioned in constitutional cases brought by or against government institutions. This doctrinal deficit is especially striking given that the U.S. Constitution twice refers to faithfulness and that insinuations of bad faith pervade constitutional discourse.

This Article investigates these points and their implications for constitutional law, theory, and politics. Good faith norms, the Article explains, are unevenly enforced throughout constitutional doctrine. Yet in spite of, and partly because of, their uneasy status within the courts, these norms perform a variety of rhetorical and regulative functions outside the courts. Moreover, different conceptions of constitutional bad faith have come to be associated with different constitutional actors; sorting out these conceptions helps to illuminate the architecture of constitutional debate. The Article further explores how sacralization of the Constitution pushes interpreters not only to insist on their own fidelity but also to see competing views as treacherous or deceitful. The overarching obligation to keep faith with the canonical text, in other words, contributes to a culture rife with suspicion of interpretive bad faith.

Keywords: Constitutional law, constitutional theory, constitutional politics, constitutional culture, constitutional interpretation, constitutional faith, good faith, bad faith, comparative analysis, judicial review, separation of powers, underenforcement, conventions, fiduciary duties, opportunism, Sartre

Suggested Citation

Pozen, David, Constitutional Bad Faith (2016). Harvard Law Review, Vol. 129, pp. 885-955, 2016. Available at SSRN: https://ssrn.com/abstract=2672386

David E. Pozen (Contact Author)

Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States

HOME PAGE: http://web.law.columbia.edu/faculty/david-pozen

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